Editor’s note: This commentary is by Thomas F. Koch, a former legislator who represented Barre Town in the Vermont House of Representatives for 22 years. He did not seek re-election in November.
[W]hen I announced my retirement from the Legislature after 22 years, a surprising number of people asked me to continue writing “Scribblings.” I have considered those requests, and I have decided to make the effort. How long it will last and how frequently I will write remains to be seen. There is a vast difference between writing with inside knowledge of the doings on the hill and looking at things as the outsider I have now become. However, realizing the futility of trying to keep my mouth shut when issues arise, I will occasionally get to work on the keyboard. The following is my first effort. It began as an op-ed piece, but then I decided that it might best be used as the first of my new “Scribblings.”
But first, may I wish each and every one of you the best for the New Year!
On Jan. 8, Vermont will hold an election for governor. Only 180 people will be eligible to vote.
Because no candidate received a majority of votes for governor on Nov. 4, the Vermont Constitution declares that there has been “no election,” and it falls to the members of the General Assembly, meeting together in joint session, with each member having one vote, to elect the next governor. They must choose from among the three candidates for governor who received the greatest number of votes on Nov. 4 — in this case Peter Shumlin, Scott Milne, and Dan Feliciano.
The words “no election” that appear in the third paragraph of Chapter II, Sec. 47 of the Vermont Constitution have great significance. Those words mean that none of the three candidates eligible to receive votes has the automatic right to become governor. There are more than a few people who argue that the candidate who received the greatest number of votes in November should, for that reason alone, be elected by the Legislature. Indeed, such “confirmation” by the Legislature has become traditional, but that does not make it right.
The problem with this argument is that it flies in the face of the Constitution. If the writers of the Vermont Constitution had intended that the person who received a plurality — but not a majority — of votes in November should automatically become governor, they would not have declared that there had been “no election,” and they would not have required a subsequent legislative vote. There must be other factors to be considered.
In the 18th and 19th centuries, and even in part of the 20th century, it was not practical to resolve a “non-election” except by legislative vote. But that is no longer the case, and the Constitution should be amended to provide some other means of declaring a candidate elected.
As a legislator, my position on this matter — as on all other matters — was that I was elected to do what in my judgment I thought was best for the people of Vermont. In cases like this, that meant voting for the candidate I judged would do the best job. In making that judgment, I thought it was legitimate to consider all the information I had available at the time I had to vote, including facts that were not known in November and events that had transpired since the November election. I certainly thought that one factor to be considered was who received the most votes in November; likewise, I thought I could legitimately consider how my district had voted in November. And since there had been “no election” in November, I certainly thought it was appropriate for candidates or other citizens to attempt to persuade me to vote one way or another. But the bottom line for me was always what I judged best for Vermont.
So the Constitution sets out a procedure, and the Constitution must be obeyed. But the procedure established by the Constitution is a relic of the past, and it is time to change it.
The first paragraph of Chapter II, Sec. 47 of the Constitution is instructive. It reads:
The voters of each town shall, on the day of election for choosing Representatives to attend the General Assembly, bring in their votes for Governor, with the name fairly written, to the Constable, who shall seal them up, and write on them, Votes for Governor, and deliver them to the Representatives chosen to attend the General Assembly; and at the opening of the General Assembly, there shall be a committee appointed out of the Senate and House of Representatives, who, after being sworn to the faithful discharge of their trust, shall proceed to receive, sort, and count the votes for Governor, and declare the person who has the major part of the votes, to be Governor for the two years ensuing. The Lieutenant-Governor and the Treasurer shall be chosen in the manner above directed.
We no longer depend on the voters’ handwritten ballots; we have printed ballots. The constable no longer serves as a municipality’s chief election official; the town or city clerk does. And most particularly, we no longer wait until January for the members of the General Assembly to count the ballots; the ballots are counted in each municipality, and the results are forwarded to the Secretary of State, who tabulates them on election night. At that point, we know whether any person has received a “major part of the votes.”
In the 18th and 19th centuries, and even in part of the 20th century, it was not practical to resolve a “non-election” except by legislative vote. But that is no longer the case, and the Constitution should be amended to provide some other means of declaring a candidate elected. We could choose to hold a runoff election in December, as some other states do, between the two candidates receiving the most votes in November. Or we could simply declare the person with the greatest number of votes to be elected, as several other states do. Or, if we do not wish to have our governor elected by a plurality of 37 percent, or less, we could put a floor in the provision, allowing the person with the greatest number of votes to be elected provided that the percentage of vote is no less that 40 percent, or 45 percent, or some other percentage. There may be other legitimate methods, but these three come to mind.
The point is that our procedure, once useful in another time, is out of date and should be changed. Constitutional amendments in Vermont need to start in the Senate, and they can be started only every fourth year. 2015 is such a year, and the present spectacle provides ample reason to begin the amendment process during this session of the Legislature.